The second requirement is that of fair presentment of constitutional issues. Jones, 15 F.3d at 674. Under this requirement, the petitioner must have raised the claims made in his petition in the state court proceedings. Picard v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). This prerequisite to federal habeas review is designed to preserve the balance of the dual system of government by providing the state courts the first opportunity to remedy a constitutional violation. Duckworth v. Serrano, 454 U.S. 1, 4, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981). Failure to satisfy both requirements results in procedural default and denial of the petition. Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988), cert. denied, 490 U.S. 1009, 104 L. Ed. 2d 163, 109 S. Ct. 1648 (1989).

Riggins claims that at the time of his criminal trial for the charges of murder and armed violence, he was denied effective assistance of counsel. In support, he states that at trial the arresting officer testified that he recovered a driver's license from Riggins with his name on it. Riggins informed his trial attorneys that the arresting officer was lying on the stand because he did not have a license at the time of the arrest. Riggins further explained that he was driving while on probation for driving with a revoked license. Given this information, Riggins charges that his attorneys should have cross examined the arresting officer in order to impeach him.

Riggins' ineffective assistance of counsel claim, however, is procedurally defective and, thus, it must fail. Respondents Kenneth R. McGinnis and Roland Burris, the Attorney General of the State of Illinois (collectively "government") point out that Riggins never raised the ineffective assistance of counsel claim in the state appellate proceeding. Riggins raised the following issues on direct appeal to the Illinois Appellate Court: (1) whether the trial court erred in denying Riggins' motion for directed verdict after the closing of the government's case in chief; (2) whether the jury instructions on murder and voluntary manslaughter misallocated the prosecution's burden of disproving the existence of a mitigating mental state; and (3) whether the court erred in permitting the government to impeach Riggins on matters collateral to the substantive issues in the trial and matters outside the scope of his direct examination. People v. Riggins, 205 Ill. App. 3d 904, 564 N.E.2d 122, 148, 150-51, 151 Ill. Dec. 145 (Ill. App. Ct. 1990), appeal denied, 567 N.E.2d 339 (Ill. 1991). Indeed, Riggins failed to raise the claim of ineffective assistance of counsel on direct appeal. In addition, he does not argue otherwise. Thus, Riggins' claim of ineffective assistance of counsel is barred by a procedural default.

Riggins next claims that because of prosecutorial misconduct he was denied due process when the prosecutor called him a "dope dealer" during closing argument. This claim, like the ineffective assistance claim, is barred by the procedural default. He did not raise the issue on direct appeal. In his habeas petition, however, Riggins explains that the prosecutorial misconduct issue was not presented on direct appeal because his attorneys believed that it was at best a harmless error.

Riggins' appellate strategy, however, is not an external factor which impeded his counsel from raising the issue. To the contrary, Riggins' counsel at the time of his direct appeal deliberately abandoned the issue. See generally Murray, 477 U.S. at 488. Therefore, the prosecutorial misconduct claim is barred by the procedural default.

Lastly, Riggins contends that the trial court violated his constitutional right to due process when it gave the Illinois Pattern Jury Instructions ("IPI") 7.02
*fn2"
on murder and 7.04
*fn3"
voluntary manslaughter in that order. Unlike the other two claims Riggins asserts in his § 2254 petition, the Illinois Appellate Court did consider his challenge to the jury instructions on direct appeal. See Riggins, 564 N.E.2d at 127. Riggins contended that the IPIs given to the jury at his trial misallocated the State of Illinois' ("State") burden to disprove the existence of a mitigating mental state in violation of People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1 (Ill. 1988).

The Illinois Appellate Court agreed with Riggins that giving of the subject IPI to the jury at his trial was an error pursuant to Reddick. Nonetheless, the Illinois Appellate Court concluded that reversal of the conviction was not required under Illinois law because the erroneous instructions amounted to nothing more than a harmless error. In reaching this conclusion, the Illinois Appellate Court emphasized the strength of the State's evidence against Riggins and against the claim of self-defense:

Id. at 128. In like fashion, the government argues that the error associated with instructing the jury as the trial court had done does not warrant a habeas relief because it was a harmless error. Citing People v. Shields, 143 Ill. 2d 435, 575 N.E.2d 538, 159 Ill. Dec. 40 (Ill. 1991), the government urges this court to view the entire record to determine whether it demonstrates that the error was harmless beyond a reasonable doubt. Riggins responds that the jury instructions employed in his case were inherently prejudicial and, therefore, requires the court to grant habeas relief under Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), and its progeny.

At first glance, the record appears to indicate that Riggins' federal constitutional challenge to the jury instructions was properly presented to the Illinois Appellate Court. Even the government does not contest that the jury instruction issue is properly preserved for a federal habeas review. On a closer examination, however, this is not so. The fatal mistake in Riggins' approach is equating the Reddick claim to the Falconer claim to arrive at the conclusion that the Reddick claim raised on direct appeal is a federal constitutional question. The mistake is certainly understandable given the confusion created by the Seventh Circuit with respect to the characterization of Reddick problem as one of constitutional dimension. Taylor v. Gilmore, 954 F.2d 441, 448 (7th Cir. 1992), reversed on other grounds, 124 L. Ed. 2d 306, 113 S. Ct. 2112 (1993). The Taylor court stated that:

By stating [that Reddick was grounded solely on Illinois criminal law] we do not mean to imply that the precise nature of Reddick.. . . was always free from doubt, or even that we had no hand in creating this doubt. In Rose v. Lane, 910 F.2d 400, 401 n.1 (7th Cir. 1990), for example, we suggested that Reddick "creates a federal claim through In re Winship. . . ." While we subsequently characterized this statement as "somewhat unartful shorthand," Fleming v. Huch, 924 F.2d 679, 683 (7th Cir. 1991), some of our cases may have left the lingering impression that we still believed there was some federal constitutional content in Reddick.

Id. The prevailing Seventh Circuit view of Reddick is that it has no foundation in federal due process principles and that Falconer is inapposite to Reddick. Id. at 449.

While the Reddick and Falconer courts condemned the identical jury instructions, IPI 7.02 and 7.04, they grappled with distinguishable defects. In Reddick, the defect was the imposition of the burden of proving the mitigating mental state on the defendant. Verdin v. O'Leary, 972 F.2d 1467, 1470 (7th Cir. 1992). In Falconer, the problem "was that the jury instructions permitted the jury to find the defendant guilty of murder even if it found one of the mitigating mental states." Mason v. Gramley, 9 F.3d 1345, 1352 (7th Cir. 1993).

The distinction between a Reddick problem and a Falconer problem is critical for purposes of a federal habeas review. Riggins claimed on direct appeal that the jury instruction given at his trial misallocated the burden of disproving the mitigating mental state at his trial in violation of Reddick. This burden-shifting defect violates the Illinois Criminal Code, but it is not cognizable on habeas review. Verdin, 972 F.2d at 1476. Reddick is controlled solely by the Illinois Criminal Code and "does not rest upon federal due process principles[.]" Taylor, 954 F.2d at 449. If the state courts resolved an issue, as the Illinois Appellate Court did in this case, on independent and adequate state law grounds, it is not subject to collateral review. Del Vecchio v. Illinois Dept. of Corrections, Nos. 92-2553 & 92-2622, 1994 WL 374790, at *15 (7th Cir. July 19, 1994). Federal courts are forbidden from granting habeas relief on the basis that a state court erred under state law. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991). "[Riggins] consequently cannot reap the benefit of Reddick on collateral review, for [the court] may not grant habeas relief to remedy an error of state law." Taylor, 954 F.2d at 449.

In the case at bar, there is no indication in the appellate record that Riggins fairly presented a federal constitutional challenge to the subject IPIs. His challenge to IPI 7.02 and 7.04 was limited to the argument that those jury instructions misallocated the burden of disproving the mitigating mental states in violation of Reddick. An examination of Riggins' appellate brief discloses that the thrust of his argument for a new trial was the Reddick decision and the improper shifting of the applicable burden of proof. Furthermore, devoting five pages of his appellate brief to challenging the jury instructions, Riggins cited only state cases which were decided before the Falconer decision.

Additionally, the Illinois Appellate Court rejected Riggins' jury instruction challenge without relying on or referring to federal constitutional provisions or analysis. The Illinois Appellate Court recognized the Reddick problem in Riggins' trial, but applying state law, it held that the Reddick error was harmless beyond a reasonable doubt under the facts of this case:

Such a combination of instructions, if followed by a jury, eliminates the possibility of a defendant being convicted of voluntary manslaughter as the only way a mitigating mental state can be proved is by the defendant, rather than by the State. Nonetheless, an erroneous instruction is harmless if the result of the trial could have been the same had the proper instruction been given.

Riggins, 564 N.E.2d at 127. In support of this proposition, the Illinois Appellate Court discussed and relied on People v. Carter, 177 Ill. App. 3d 593, 532 N.E.2d 531, 126 Ill. Dec. 846 (Ill. App. Ct. 1988), and People v. Williams, 205 Ill. App. 3d 751, 563 N.E.2d 762, 150 Ill. Dec. 635 (Ill App. Ct. 1989). Id. at 127-28 ("We find the present case to be similar to Carter and Williams in that the evidence of the defendant's alleged belief in self-defense was contradicted by three witnesses who were present.")

Moreover, the Illinois Appellate Court's opinion does not demonstrate that the appellate court sua sponte recognized or raised the federal constitutional issue discussed in Falconer. The Riggins court did mention the Falconer decision, but in the context of distinguishing this case to the facts of Falconer and only as a parenthetical explanation.
*fn4"
Therefore, a mere citation to the Falconer case by the appellate court is not enough to conclude that a federal constitutional challenge to the jury instructions was properly presented or considered by the state court.

For the foregoing reasons, Riggins' petition for habeas corpus relief is denied.

IT IS SO ORDERED.

ENTER:

CHARLES RONALD NORGLE, SR., Judge

United States District Court

DATED: 7/28/94

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